Freedom

► Full Reference: R. Sève, "L'Obligation de Compliance et les mutations de la souveraineté et de la citoyenneté" ("Compliance Obligation and changes in Sovereignty and Citizenship"), in M.-A. Frison-Roche (ed.), L'obligation de Compliance, Journal of Regulation & Compliance (JoRC) and Dalloz, coll. "Régulations & Compliance", 2025, pp. 97-107.   - 📕read the general presentation of the book, L'obligation de Compliance, in which this article is published. - ► English Summary of this article (done by the Journal of Regulation & Compliance – JoRC) : The contribution describes "les changements de philosophie du droit que la notion de compliance peut impliquer par rapport à la représentation moderne de l’Etat assurant l’effectivité des lois issues de la volonté générale, dans le respect des libertés fondamentales qui constituent l’essence du sujet de droit." ("the changes in legal philosophy that the notion of Compliance may imply in relation to the modern representation of the State ensuring the effectiveness of laws resulting from the general will, while respecting the fundamental freedoms that constitute the essence of the subject of law"). The contributor believes that the definition of Compliance is due to authors who « jouer un rôle d’éclairage et de structuration d’un vaste ensemble d’idées et de phénomènes précédemment envisagés de manière disjointe.  Pour ce qui nous occupe, c’est sûrement le cas de la théorie de la compliance, développée en France par Marie-Anne Frison-Roche dans la lignée de grands économistes (Jean-Jacques Laffont, Jean Tirole) et dont la première forme résidait dans les travaux bien connus de la Professeure sur le droit de la régulation. » ( "play a role in illuminating and structuring a vast set of ideas and phenomena previously considered in a disjointed manner.  For our purposes, this is certainly the case with the theory of Compliance, developed in France by Marie-Anne Frison-Roche in the tradition of great economists (Jean-Jacques Laffont, Jean Tirole) and whose first form was in her well-known work on Regulatory Law"). Drawing on the Principles of the Law of the American Law Institute, which considers compliance to be a "set of rules, principles, controls, authorities, offices and practices designed to ensure that an organisation conforms to external and internal norms", he stresses that Compliance thus appears to be a neutral mechanism aimed at efficiency through a move towards Ex Ante. But he stresses that the novelty lies in the fact that it is aimed 'only' at future events, by 'refounding' and 'monumentalising' the matter through the notion of 'monumental goals' conceived by Marie-Anne Frison-Roche, giving rise to a new jus comune. Thus, "la compliance c’est l’idée permanente du droit appliquée à de nouveaux contextes et défis." ("Compliance is the permanent idea of Law applied to new contexts and challenges").  So it's not a question of making budget savings, but rather of continuing to apply the philosophy of the Social Contract to complex issues, particularly environmental issues.  This renews the place occupied by the Citizen, who appears not only as an individual, as in the classical Greek concept and that of Rousseau, but also through entities such as NGOs, while large companies, because they alone have the means to pursue the Compliance Monumental Goals, would be like "super-citizens", something that the digital space is beginning to experience, at the risk of the individuals themselves disappearing as a result of "surveillance capitalism". But in the same way that thinking about the Social Contract is linked to thinking about capitalism, Compliance is part of a logical historical extension, without any fundamental break: "C’est le développement et la complexité du capitalisme qui forcent à introduire dans les entités privées des mécanismes procéduraux d’essence bureaucratique, pour discipliner les salariés, contenir les critiques internes et externes, soutenir les managers en place" ("It is the development and complexity of capitalism that forces us to introduce procedural mechanisms of a bureaucratic nature into private entities, in order to discipline employees, contain internal and external criticism, and support the managers in place") by forcing them to justify remuneration, benefits, and so on. Furthermore, in the words of the author, "Avec les buts monumentaux, – la prise en compte des effets lointains, diffus, agrégés par delà les frontières, de l’intérêt des générations futures, de tous les êtres vivants – ,  on passe, pour ainsi dire, à une dimension industrielle de l’éthique, que seuls de vastes systèmes de traitement de l’information permettent d’envisager effectivement." ("With the Monumental Goals – taking into account the distant, diffuse effects, aggregated across borders, the interests of future generations, of all living beings – we move, so to speak, to an industrial dimension of ethics, which only vast information processing systems can effectively envisage"). This is how we can find a division between artificial intelligence and human beings in organisations, particularly companies, or in decision-making processes. In the same way, individual freedom does not disappear with Compliance, because it is precisely one of its monumental goals to enable individuals to make choices in a complex environment, particularly in the digital space where the democratic system is now at stake, while technical mechanisms such as early warning will revive the right to civil disobedience, invalidating the complaint of "surveillance capitalism". The author concludes that the stakes are so high that Compliance, which has already overcome the distinctions between Private and Public Law and between national and international law, must also overcome the distinction between Information and secrecy, particularly in view of cyber-risks, which requires the State to develop and implement non-public Compliance strategies to safeguard the future. - 🦉Cet article est accessible en texte intégral pour les personnes inscrites aux enseignements de la Professeure Marie-Anne Frison-Roche

► Full Reference: R. Sève, "Compliance Obligation and changes in Sovereignty and Citizenship", in M.-A. Frison-Roche (ed.), Compliance Obligation, Journal of Regulation & Compliance (JoRC) and Bruylant, "Compliance & Regulation" Serie, to be published - 📘read a general presentation of the book, Compliance Obligation, in which this article is published - ► Summary of the article (done by the Journal of Regulation & Compliance – JoRC):  The contribution describes "les changements de philosophie du droit que la notion de compliance peut impliquer par rapport à la représentation moderne de l’Etat assurant l’effectivité des lois issues de la volonté générale, dans le respect des libertés fondamentales qui constituent l’essence du sujet de droit." ("the changes in legal philosophy that the notion of Compliance may imply in relation to the modern representation of the State ensuring the effectiveness of laws resulting from the general will, while respecting the fundamental freedoms that constitute the essence of the subject of law"). The contributor believes that the definition of Compliance is due to authors who « jouer un rôle d’éclairage et de structuration d’un vaste ensemble d’idées et de phénomènes précédemment envisagés de manière disjointe.  Pour ce qui nous occupe, c’est sûrement le cas de la théorie de la compliance, développée en France par Marie-Anne Frison-Roche dans la lignée de grands économistes (Jean-Jacques Laffont, Jean Tirole) et dont la première forme résidait dans les travaux bien connus de la Professeure sur le droit de la régulation. » ( "play a role in illuminating and structuring a vast set of ideas and phenomena previously considered in a disjointed manner.  For our purposes, this is certainly the case with the theory of Compliance, developed in France by Marie-Anne Frison-Roche in the tradition of great economists (Jean-Jacques Laffont, Jean Tirole) and whose first form was in her well-known work on Regulatory Law"). Drawing on the Principles of the Law of the American Law Institute, which considers compliance to be a "set of rules, principles, controls, authorities, offices and practices designed to ensure that an organisation conforms to external and internal norms", he stresses that Compliance thus appears to be a neutral mechanism aimed at efficiency through a move towards Ex Ante. But he stresses that the novelty lies in the fact that it is aimed 'only' at future events, by 'refounding' and 'monumentalising' the matter through the notion of 'monumental goals' conceived by Marie-Anne Frison-Roche, giving rise to a new jus comune. Thus, "la compliance c’est l’idée permanente du droit appliquée à de nouveaux contextes et défis." ("Compliance is the permanent idea of Law applied to new contexts and challenges").  So it's not a question of making budget savings, but rather of continuing to apply the philosophy of the Social Contract to complex issues, particularly environmental issues.  This renews the place occupied by the Citizen, who appears not only as an individual, as in the classical Greek concept and that of Rousseau, but also through entities such as NGOs, while large companies, because they alone have the means to pursue the Compliance Monumental Goals, would be like "super-citizens", something that the digital space is beginning to experience, at the risk of the individuals themselves disappearing as a result of "surveillance capitalism". But in the same way that thinking about the Social Contract is linked to thinking about capitalism, Compliance is part of a logical historical extension, without any fundamental break: "C’est le développement et la complexité du capitalisme qui forcent à introduire dans les entités privées des mécanismes procéduraux d’essence bureaucratique, pour discipliner les salariés, contenir les critiques internes et externes, soutenir les managers en place" ("It is the development and complexity of capitalism that forces us to introduce procedural mechanisms of a bureaucratic nature into private entities, in order to discipline employees, contain internal and external criticism, and support the managers in place") by forcing them to justify remuneration, benefits, and so on. Furthermore, in the words of the author, "Avec les buts monumentaux, – la prise en compte des effets lointains, diffus, agrégés par delà les frontières, de l’intérêt des générations futures, de tous les êtres vivants – ,  on passe, pour ainsi dire, à une dimension industrielle de l’éthique, que seuls de vastes systèmes de traitement de l’information permettent d’envisager effectivement." ("With the Monumental Goals – taking into account the distant, diffuse effects, aggregated across borders, the interests of future generations, of all living beings – we move, so to speak, to an industrial dimension of ethics, which only vast information processing systems can effectively envisage"). This is how we can find a division between artificial intelligence and human beings in organisations, particularly companies, or in decision-making processes. In the same way, individual freedom does not disappear with Compliance, because it is precisely one of its monumental goals to enable individuals to make choices in a complex environment, particularly in the digital space where the democratic system is now at stake, while technical mechanisms such as early warning will revive the right to civil disobedience, invalidating the complaint of "surveillance capitalism". The author concludes that the stakes are so high that Compliance, which has already overcome the distinctions between Private and Public Law and between national and international law, must also overcome the distinction between Information and secrecy, particularly in view of cyber-risks, which requires the State to develop and implement non-public Compliance strategies to safeguard the future. - 🦉This article is available in full text to those registered for Professor Marie-Anne Frison-Roche's courses -

► Full Reference: M.-A. Frison-Roche, "François Terré. In memoriam", D. 2024, p. 1028 - 🌞read the in memoriam published in the Recueil Dalloz on June 6, 2024 (in French) - 🌐follow Marie-Anne Frison-Roche on LinkedIn 🌐follow Marie-Anne Frison-Roche on Instagram 🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law

► Full Reference complète : Beaussonie, G., Do Criminal Law and Compliance form a system?, in Frison-Roche, M.-A. (ed.),Compliance Monumental Goals, series "Compliance & Regulation", Journal of Regulation & Compliance (JoRC) and Bruylant, to be published. - ► Article Summary:  By nature, Criminal Law is a system that is not intended to develop, principles which limit it being internal to it. Nevertheless if Proportionality is respected, its extension may be legitimate to preserve “fundamental social values” because Criminal Law is the branch of Law concerning what is grave, grave in consequences as in causes. Not always being concerned by Efficiency, the temptation is important to supplement Criminal Law with other repressive mechanisms , not only Administrative Repression but today Compliance which pursues concordant objectives and aims by the "Goals Monumental ”to what would be most important and therefore for which Efficiency would be required, in particular because victory (for example against corruption) should be global. Efficiency is obtained by the internalisation in powerful companies, but this efficiency comes at a price and Criminal Law should not impose too many obligations to do maintaining only a potential link with the commission of a "real offense ”. Its association with Compliance can therefore also only be exceptional and must not lead to forget  that Freedom must always remain the principle. -     📝 Read the  general presentation of the book in which this article is published.   -

►  An article published on July 14, 2021 by The Wall Street Journal, "Brain Implant Lets Man 'Speak' After Being Silent for More Than a Decade", relays the information that it is now possible, on an experimental basis, to implant in the brain a device allowing a person deprived by a neurological accident to speak to be able to express himself again by writing his thoughts directly on a computer screen, on which the words thought are displayed in sentences. - Several years of "fundamental" research, notably on the part of Facebook, which, in particular by subsidizing the French professor of neurosciences Stanislas Dehaene, in a comparison between the learning development of the brain and the development of "deep learning", have been successful. to allow people who have lost the use of the voice to write directly on screens without this vocal medium by going directly from thought to writing. This leads to three reflections, putting Law and Technology at the center: 1. at first glance, speech being only a medium between thought and expression, it would be conceivable to do without it; 2. However, it is required to draw a parallel with the new technology of "emotional recognition" by which thoughts are accessible to third parties, which thwarts the fundamental right to make one's thoughts inaccessible to others;  The news has shown precisely that this technology, making possible to capture the true thoughts of others despite feigned facial expressions, poses a problem with regard to the fundamental right to lie or to remain silent (see in this regard 📧 MaFR, "Compliance and Ethics Technologies may be inadmissible "in themselves" and conceiving of their "ethical use" is therefore not admissible: practical case on the control of workers' emotions "). 3. By anticipating the possible use of this new technology and the legal reaction to this potentiality, the same question raises whether, per se, such an implantation of a tool for "capturing thoughts directly in the brain" to obtain their "direct translation on a screen" should not be considered as the equivalent of capturing thoughts, just as infringing on everyone's fundamental right to keep their thoughts inaccessible. Here again, the fact that in one or two cases, this made it possible to cure a person does not legitimize the technology in itself. Likewise, the fact that the person "consents" is not sufficient to legitimize what may be a per se attack on the dignity of the human person if the technology has the effect of capturing thoughts with a loss of control. the person concerned. For the moment, in the description given by the researchers according to the article which relates the innovation, it is the transmitter who controls the technology but the elimination of the medium of speech or writing deserves to be conceptualized, in the loss of isolation of the individual, isolation to which the Western tradition has often associated Freedom. - ► s'inscrire à la Newsletter MaFR ComplianceTech®

► An article from March 3, 2021, Smile for the camera: the dark side of China's emotion-recognition tech, then an article from June 16, 2021, "Every smile you fake" – an AI emotion – recognition system can assess how "happy" China's workers are in the office describes how a new technology of emotional recognition is able, through what will soon be out of fashion to call "facial recognition", to distinguish a smile that reflects a mind state of real satisfaction from a smile which does not correspond to it. This allows the employer to measure the suitability of the human being for his or her work. It is promised that it will be used in an ethical way, to improve well-being at work. But isn't it in itself that this technology is incompatible with any compensation through ethical support? The technology developed by a Chinese technology company and acquired by other Chinese companies with many employees, allows to have information on the actual state of mind of the person through and beyond his or her facial expressions and bodily behavior. Previously, the technology of emotional recognition had been developed to ensure security, by fighting against people with hostile plans, public authorities using it for example in the controls at airports to detect the criminal plans which some passengers could have. It is now affirmed that it is not about fighting against some evil people ("dangerousness") to protect the group before the act is committed ("social defense”) but that it is about helping all workers. Indeed, the use that will be made of it will be ethical, because first the people who work for these Chinese companies with global activity, like Huawaï, do it freely and have accepted the operation of these artificial intelligence tools (which is not the case with people who travel, control being then a kind of necessary evil that they do not have to accept, which is imposed on them for the protection of the group), but even and above all, the purpose is itself ethical: if it turns out that the person does not feel well at work, that they are not happy there, even before they are perhaps aware, the company can assist. Let’s take this practical case from the perspective of Law and let’s imagine that it is contested before a judge applying the principles of Western Law. Would this be acceptable? No, and for three reasons. 1. An "ethical use" cannot justify an unethical process in itself 2. The first freedoms are negative 3. "Consent" should not be the only principle governing the technological and digital space   I. AN "ETHICAL USE" CAN NEVER LEGITIMATE AN UNETHICAL PROCESS IN ITSELF These unethical processes in themselves cannot be made "acceptable" by an "ethical use" which will be made of them. This principle was especially reminded by Sylviane Agacinski in bioethics: if one cannot dispose of another through a disposition of his or her body which makes his or her very person available (see not. Agacinski, S., ➡️📗Le tiers-corps. Réflexions sur le don d’organes, 2018). Except to make the person reduced to the thing that his or her body is, which is not ethically admissible in itself, that is excluded, and Law is there in order to this is not possible. This is even why the legal notion of "person", which is not a notion that goes without saying, which is a notion built by Western thought, acts as a bulwark so that human beings cannot be fully available to others, for example by placing their bodies on the market (see Frison-Roche, M.-A., ➡️📝To protect human beings, the ethical imperative of the legal notion of person, 2018). This is why, for example, as Sylviane Agacinski emphasizes, there is no ethical slavery (a slave who cannot be beaten, who must be well fed, etc.). That the human being agrees ("and what about if it pleases me to be beaten?") does not change anything.   II. THE FIRST FREEDOM IS THE ONE TO SAY NO, FOR EXAMPLE BY REFUSING TO REVEAL YOUR EMOTIONS: FOR EXAMPLE HIDING IF YOU ARE HAPPY OR NOT TO WORK The first freedom is not positive (being free to say Yes); it is negative (being free to say No). For example, the freedom of marriage is having the freedom not to marry before having the freedom to marry: if one does not have the freedom not to marry, then the freedom to marry loses any value. Likewise, the freedom to contract implies the freedom not to contract, etc. Thus, freedom in the company can take the form of freedom of speech, which allows people, according to procedures established by Law, to express their emotions, for example their anger or their disapproval, through the strike. But this freedom of speech, which is a positive freedom, has no value unless the worker has the fundamental freedom not to express his or her emotions. For example if he or she is not happy with his or her job, because he or she does not appreciate what he or she does, or he or she does not like the place where he or she works, or he or she does not like people with whom he or she works, his or her freedom of speech demands that he or she have the right not to express it. If the employer has a tool that allows him or her to obtain information about what the worker likes and dislikes, then the employee loses this first freedom. In the Western legal order, we must be able to consider that it is at the constitutional level that the infringement is carried out through Law of Persons (on the intimacy between the Law of Persons and the Constitutional Law, see Marais , A., ➡️📕Le Droit des personnes, 2021).   III. CONSENT SHOULD NOT BE THE ONLY PRINCIPLE GOVERNING THE TECHNOLOGICAL AND DIGITAL SPACE   We could consider that the case of the company is different from the case of the controls operated by the State for the monitoring of airports, because in the first case observed people are consenting. "Consent" is today the central notion, often presented as the future of what everyone wants: the "regulation" of technology, especially when it takes the form of algorithms ("artificial intelligence"), especially in digital space. "Consent" would allow "ethical use" and could establish the whole (on these issues, see Frison-Roche, M.-A., ➡️📝Having a good behavior in the digital space, 2019). "Consent" is a notion from which Law is today moving away in Law of Persons, in particular as regards the "consent" given by adolescents on the availability of their body, but not yet on digital. No doubt because in Contract Law, "consent" is almost synonymous with "free will", whereas they must be distinguished (see Frison-Roche, M.-A., ➡️📝Remarques sur la distinction entre la volonté et le consentement en Droit des contrats, 1995). But we see through this case, which precisely takes place in China, that "consent" is in Law as elsewhere a sign of submission. It is only in a probative way that it can constitute proof of a free will; this proof must not turn into an irrebuttable presumption. The Data Regulatory Authorities (for example in France the CNIL) seek to reconstitute this probative link between "consent" and "freedom to say No" so that technology does not allow by "mechanical consents", cut off from any connection with the principle of freedom which protects human beings, from dispossessing themselves (see Frison-Roche, M.-A., Yes to the principle of will, No to pure consents, 2018). The more the notion of consent will be peripheral, the more human beings will be able to be active and protected. -

Full reference: Frison-Roche, M.-A., Freedom&Media: when Italian Media Regulation's real "goal"​ is not Pluralism Protection, Freedom of Establishment prevails (CJEU, 3 Sept.2020,Vivendi), Newsletter MAFR – Law, Regulation, Compliance, 9th of September 2020 Read by freely subscribing other news of the Newsletter MAFR – Law, Regulation, Compliance   Summary of the news The media sector is organized on an equilibrium between the principle of competition and other concerns like information pluralism. Generally, competition Law by making market accessible to many competitors ensures information pluralism. But, this is not the case if an operator get an excessive market power, running risk not only for competition but also for information pluralism. It is the reason why the Italian legal system forbids the constitution of an operator gathering more than 40% of the total income generated by the media sector or more than 10% of the total income generated by the Italian communication sector.  In 2016, Vivendi, a French media group, got more than 28% of the Mediaset Group's actions and around 30% of its voting right. The Italian communication regulation authority sized by Mediaset demands in 2017 to Vivendi to ends its participations in the group Mediaset. Vivendi contested this decision before the regional administrative court which referred to the Court of Justice of the European Union in order to know if freedom of establishment can legitimately be discarded in favor of information pluralism in this concrete case. The Court of Justice answered, in a decision of 3rd of September 2020, that the restriction of the freedom of establishment can in principle be justified by a general interest objective such as information pluralism protection but that in this concrete case, this is not justified because the fact that a firm is committed in the transmission of contents does not necessarily give it the power to control the production of such contents. We can learn three lessons form this case: The Court precises that even if the principle is the freedom of establishment, it is possible to discard it to protect information pluralism protection under the condition that the concerned member State do not use this legitimate power to create a political monopoly, the burden of proof falling on the person attacking national legislation and not on the Member State. The Court distinguishes transmission of contents and production of contents and explains that if the State rejects this decision, the burden falling to it to prove the concrete links between these two activities. This case shows that the power to share the respective places of the "principle" and of the "exception" always comes back to the judges. 

Experience shows that in the digital the legal technique of consent is not protective enough.   If only because a simplest technology neutralizes the link that should exist between the "consent" of the user and the "free will" of the latter: the consent of the user only protects the latter to the extent that this one can in Law and in fact to say "no.     I. THE EXPERIENCE    For example I found on my Facebook New an access to an unknown web site which puts online an article on "the rights of trees" … I go. In accordance with the European Regulation (GDPR) transposed into French legal system, the site informs that there is possibility for the user to accept or refuse the use of their personal data for the benefit of "partners". If they continue reading, the user is supposed to accept everything, but they can click to "customize". I click: there I find two options: "accept everything" or "reject everything". But the "reject all" option is disabled. It is only possible to click on the "accept all" option.   It is also possible, because the law obliges, to consult the list of the partners of this website: I click and find a list of unknown companies, with foreign denominations, which without doubt once will collect my personal data (and those of my contacts) , having their own head office outside the European Union. It is stated in a text, which can not be copied, that these "partners" can use my data without my consent and for purposes that they do not have to inform me. But, again, these things I can "refuse everything". Here again the "reject all" mention exists but the fonctionality is not active, while the mention "accept all" is an active fonctionality.   As I can not refuse (since it's disabled), and as 99% of Internet users have never clicked on the first two buttons, all their data has been fed into the data market that allows the targeting of products that spill out in the digital space, to their detriment and that of their contact. While believing to read a free article on the "right of the trees". At the end, I do not read this article, since I did not click on the only active buttons: "accept everything".   In more than 50% of cases, the "reject all" or "customize" options are only images but are not active. And data absorption is also about contacts. In exchange for a whimsical article about trees and their rights, or creams to be always young, or celebrities who change spouses, or about so-called tests to find what king or queen you should be if the all recognized all your merits, etc. Proposed on the digital news feed by unknown sites; in partnership with foreign companies that you will never reach. And mass-viewed by Internet users who are also told that "consent" is the proven solution for effective protection …. While these are just panels hastily built by new Potemkins …   II. WHAT TO DO ?    1. Not be satisfied with "consent" from the moment that it is a mechanism that may not be the expression of a free will: how could it be if the option "to refuse" is not active?   2. The link between will and consent must therefore be "presumed" only in a simple presumption and in a non-irrefutable way, because we must refuse to live in a dehumanized society, operating on "mechanical consents", to which the digital does not lead necessarily.   3. Entrust by the Compliance Law to the "crucial digital operators" (in the case of Facebook thanks to which these proposals for free reading are made on the thread of news of the Net surfers) the care to verify in Ex Ante the effectiveness of the link between Will and Consent: Here and concretely the possibility for the user to read while refusing the capture of all its data (for the benefit of operators who do not even have the concrete obligation to give the information of the use that will be made of these personal data).   -

► Complete reference: Frison-Roche, M.-A., Yes to the principle of the will, No to the pure consents, working document for an article written in French Oui au principe de volonté, Non aux consentements purs, to Mélanges dedicated to Pierre Godé, 2018, available at #lien192 en / article / yes-in-principle-of-the-desire-not in the consent /   ► Summary: Pierre Godé devoted his thesis to defend the freedom of the human being, freedom that the person exercises by showing his will. This will manifests itself, even tacitly, by this trace of "consent". In a liberal society, politically and economically, that is to say a society based on the principle of the will of the person, consent must always be defined as the manifestation of the will, this link between consent and will being indivisible ( I). But by a perversion of liberalism, "consent" has become an autonomous object of the freedom of the person, mechanical consent that has made it possible to transform human beings into machines, machines to desire  and machines to be desired, in a world of " pure consents","where we keep clicking, consenting to all without ever wanting. This consent, which has been split from the free will of the person, is the basis of the markets of the Human and the illiberal democracies, threats against human beings (II). The future of Law, in which Pierre Godé believed, is to continue to aspire to protect the human being and, without countering the free will of the human being as the movement of the law of the consumption had been tempted to, to renew with a liberal movement of Law and to fight against these systems of pure consents (III).   🔻read the article below (in French).

In principle, the very mechanism of the market is governed by freedom, the freedoms of the agents themselves – the freedom to undertake and contract – and the competitive freedom that marks the market itself, the convergence of these freedoms allowing the self-regulated functioning of The "market law", namely the massive encounter of offers and demands that generates the right price ("fair price"). For this to work, it is necessary but it is enough that there is no barrier to entry the market and there is no behavior by which operators can hinder this competitive market law, by abuse of dominant position and cartel.   But in the case of financial markets, which are regulated markets, "market abuses" are sanctioned at the very heart of regulation. Indeed, the regulation of the financial markets presupposes that the information is distributed there for the benefit of investors, or even other stakeholders, possibly information not exclusively financial. This integrity of the financial markets which, beyond the integrity of information, must achieve transparency, justifies that information is fully and equally shared. That is why those who hold or must hold information that is not shared by others (privileged information) must not use it in the market until they have made it public. Similarly, they should not send bad information to the market. Neither should they manipulate stock market prices. These sanctions were essentially conceived by the American financial theory, concretized by the American courts, then taken back in Europe. To the extent that they sanction both reproachable behavior and constitute a public policy instrument of direction and protection of markets, the question of cumulation of criminal law and administrative repressive law can only be posed with difficulty in Europe.  

► Full reference : J. Carbonnier, "Toute loi est-elle un mal ? (Is every law a bad thing?), in Essais sur les lois (Essays on Legisation), 2nd ed., Répertoire du notariat Defrénois, 1992, pp. 317-334. - ► Summary :  Jean Carbonnier takes as his starting point the coincidence in time between the announcement of Christ’s birth and the proclamation of the census by Caesar Augustus’s edict, and goes on to ask whether, in legal matters as in religious ones, the advent of the new law might be good news. It is accepted that many new laws were bad, but is the new law bad ‘in itself’? The author does not wish to let the distinction between favourable and unfavourable laws (a sociological criterion of interest) or the distinction between old and new laws (a psychological criterion of the clash between novelty and habit) interfere, so as to address the subject as neutrally as possible: is the law an evil in itself? This pits the law against case law, custom or equity, which might be superior, but then again the author takes a broader view and prefers to contrast law with non-law and pose the question even more radically: is law in itself an evil?   To begin with, Carbonnier demonstrates the necessity, the advantages and the beneficial effects of the law, which was particularly revered by the French Revolution and, above all, by the people because of the ‘benevolence of the law’. France remains steeped in this favourable legalistic prejudice. This stems from the sense of security it affords the people, because it is clear, precise and uncompromising, permanent, and because it serves as a means of communication between people. In the second part of the article, Carbonnier refers to Lacan, who, in relation to the law, invoked the figure of the father and predicted a future society without a father. Carbonnier wonders whether a lawless society is not about to emerge, or whether psychoanalysis, seeing castration in the law, still identifies it as an evil.  In any case, he sees in this an opposition to freedom and liberalism, the rejection of the law being associated with the rejection of the state. Quoting Maurice Barrès and his 1892 work, L'ennemi des lois, he shows that for Barrès, all law is an evil, because the world must organise itself spontaneously.  For liberalism, which is less romantic, every law is an evil because it hinders the spontaneous emergence of the general interest of the social group. Thus, to take Hayek as an example, the individual knows his own interest better than the law, and the sum of these interests gives rise to the general interest. Moreover, not only is the law pernicious, but, according to liberalism, it corrupts human nature, atrophies the will and diminishes responsibility, in a perverse pedagogy. In the third part of the article, Dean Carbonnier goes on to argue that the law acts more as a safeguard and is therefore a good thing, provided the legislator remains modest. He believes that the law is necessary because man is a sinner (in a nation of righteous people, the law would be unnecessary), citing Luther and Saint Augustine. The law is therefore indispensable insofar as it wields the sword. Indeed, the law must strike because the world is inhabited by evil. The Dean states: “It is in this sense that the law appears as an evil: not because it causes harm or does harm, but because it is linked to the existence of evil. It is the revealer of sin…”. He concludes: "Knowing that the law was given to curb evil, lawyers will use it without hesitation. Knowing that it is a source of evil, they will use it with restraint." It is in this self-imposed limitation that lawlessness emerges.   -